Capitol Report

April 1, 2013

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To obtain a complete copy of the Capitol Report and/or retrieve a former Capitol Report, please visit our website at www.njsba.com.

NJSBA RECENT ACTION IN TRENTON

Animal Law

A-3303 (Singleton) Prohibits animal cruelty violators from owning domestic companion animals and from working at animal-related enterprises; designated as Moose's Law. On March 21, 2013, the bill passed in the Assembly (72-3-2).

The NJSBA Board of Trustee’s, Legislative Committee and Animal Law Committee voted to oppose this legislation because the definition of animal cruelty would be largely determined by a subjective opinion of the individual officer, who in many cases is not a sworn law enforcement officer. This legislation would impose a mandatory sentence if a person had been convicted of an animal cruelty offense in any other jurisdiction, and would strip the courts of any discretion in imposing a sentence for criminal conviction of an animal cruelty offense regardless of the seriousness of the violation, which could have been a disorderly persons offense. According to the NJSBA, the bill is the result of a single incident based on allegations involving negligence of an alleged dog trainer that may have resulted in the death of a dog, rather than solid factual evidence demonstrating the need for such legislation.

Criminal Law

S-1219 (Codey) Increases compensation for wrongful imprisonment. On March 21, 2013, the bill was substituted for A-1640 (Watson Coleman) and A-3066 (Watson Coleman), was passed in the Assembly (52-22-2) and was sent to the governor.

The New Jersey State Bar Association Board of Trustees, Legislative Committee and Criminal Law Section voted to support this legislation with amendments because there are cases where people are wrongfully imprisoned as a result of false evidence and other factors.

Health Law

A-732 (Eustace) Makes it a crime of the third degree to practice psychology, chiropractic or state-certified psychoanalysis without the appropriate license or certification. On March 21, 2013, the bill passed in the Assembly (77-0-0).

The NJSBA Board of Trustees, Legislative Committee, Family Law Section, Health Law Section and Women in the Profession Section voted to support this legislation with amendments, believing the bill would protect vulnerable patients seeking treatment for very personal and emotional problems from unlicensed professionals who have the potential to inflict significant harm on them. However, the NJSBA has respectfully requested the legislation be amended to exclude attorneys, clergy, and court mediation professionals from coverage under the bill. Otherwise, persons who are authorized by law to engage in certain activities that might constitute the practice of “marriage and family therapy” would be prohibited from doing so. The NJSBA believes the definition of what constitute the act of “practicing” marriage, family therapy, psychology or chiropractic medicine without state certification should be more properly defined in the legislation to prevent a lawyer giving a client advice regarding a divorce or custody from being accused of practicing family therapy.

Judiciary Administration

S-645 (Pou) Authorizes the court to credit an indigent person with time served under certain circumstances. On March 11, 2013, the bill was released from the Senate Judiciary Committee with amendments and is awaiting Senate vote.

The NJSBA Board of Trustees, Legislative Committee and Judicial Administration Committee voted to support this bill, believing it is appropriate to allow a person to be credited with time served if they are indigent and cannot afford to pay a fine. This is a particularly important issue given that New Jersey’s prisons continue to be overcrowded.

Lesbian, Gay, Bisexual and Transgendered Rights

S-2151 (Scutari) (Stender) Strengthens the enforceability of premarital and pre-civil union agreements. On March 21, 2013, the bill was substituted for A-3315 (Green), was amended on the Assembly floor and is awaiting Assembly vote.

The NJSBA Board of Trustees; Legislative Committee; Family Law Section; and Lesbian, Gay, Bisexual and Transgender Rights Section oppose this legislation, believing it would overturn New Jersey matrimonial and contract law that has been developed over the last 50 years. According to the NJSBA, the legislative findings that presaged New Jersey's pre-nuptial statute are as important now as they were at its creation. The statute was based upon the holding in Marschall v. Marschall, which established specified criteria for the enforceability of prenuptial agreements. Full disclosure by the parties concerning their independent assets and financial status was mandated, and disclosure must include any and all items that might influence the other party’s decision concerning the ultimate fairness of the agreement. To enforce the agreement in the future, the party seeking enforcement has the burden of proving the required disclosure occurred. In addition, the New Jersey statute also incorporated elements of a uniform law that are vital to citizens, given the fact that persons move from state to state. The layered protections of the statute acknowledge that there frequently exists a significant imbalance of power and bargaining positions at the time of the execution of a prenuptial agreement. The NJSBA believes the proposed bill is contrary to the established safeguards. The NJSBA also believes this bill alters contract law in New Jersey by determining that a pre-civil union agreement must be "more than unconscionable" to fail, a concept that would be difficult to quantify and could result in more litigation, rather than less.

Real Property, Trust and Estate Law

S-765 (Scutari) Clarifies a trustee's discretionary authority concerning income tax liability. On March 21, 2013, the bill was substituted for A-1086 (Quijano), passed in the Assembly (76-0-0) and was sent to the governor.

The NJSBA Board of Trustees; Legislative Committee; and Real Property, Trust and Estate Law Section developed this legislation to amend the existing provisions of N.J.S.A. 3B:11-1 so they would be renumbered as subparagraph (a) with the addition of a new paragraph (b).

The legislation would be declarative that existing law is inapplicable to trusts where the creator retains no beneficial interest in the trust, but that the trustee has discretionary authority to either reimburse the trust creator for income tax liability in the trust assets or pay taxes directly to the taxing authority on behalf of the trust creator. This provision is modeled after New York statute EPTL 7-3.1(d).

The NJSBA believes this legislation will provide New Jersey citizens with estate planning tax benefits while allowing the state’s banks, which often manage trusts, more business in this regard. Presently, the neighboring states of Delaware and New York are receiving this business. Florida, where many New Jerseyans have a nexus, and Arizona have also enacted these changes.

A-1551 (Wisniewski) Concerns timeframes for establishing or enforcing property rights related to adverse possession. On March 21, 2013, the bill was amended on the Assembly floor consistent with the NJSBA’s position and is awaiting Assembly vote.

The NJSBA Board of Trustees; Legislative Committee; and Real Property, Trust and Estate Law Section voted to support this bill, believing New Jersey’s adverse possession law allows an adverse possessor to acquire title to land after 30 years of uninterrupted possession of the property or 60 years in the case of woodlands or uncultivated land. However, New Jersey has a 20-year statute of limitations applicable to actions concerning real property, such as an action to recover possession of property by a record owner. This conflict between the 20-year statute of limitations and the 30 years of possession required for title to vest through adverse possession has resulted in conflict and confusion.

Through case precedent, state courts have allowed title to vest after 20 years of adverse possession. More recently, the New Jersey Supreme Court, in J&M Land Company v. First Union National Bank, held that an adverse possessor does not acquire title after 20 years, although an adverse possessor may defeat an action by a record owner to recover possession.